RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01652
            INDEX CODE 137.04
            COUNSEL:  NONE

            HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to  show  that  he  elected
coverage for her under the Reserve Component Survivor Benefit  Plan
(RCSBP).

___________________________________________________________________

APPLICANT CONTENDS THAT:

Through her congressman,  applicant  contends  that  she  has  been
denied  benefits  against  Public  Law  99-145  and  10  USC   1448
(A)(3)(A).  When her  deceased  husband  decided  to  retire,  they
discussed survivor benefits and she definitely  and  unquestionably
wanted these benefits.  After careful deliberation  they  chose  to
deny survivor benefits on a federal pension, with the understanding
that they would keep the military pension.  She did  not  sign  any
documents denying these  benefits.   When  she  contacted  the  Air
Reserve Personnel Center (ARPC) she was told that her benefits were
being denied because the paperwork given to the decedent was  never
returned, and without  the  paperwork  the  military  automatically
assumed the survivor benefits were declined.

In support of the applicant’s  appeal,  she  submitted  a  personal
statement, a letter  from  her  congressman,  and  a  copy  of  the
decedent’s death certificate.

Applicant’s complete request is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Effective 10 Oct 96, the former member was assigned to the  Retired
Reserve awaiting pay at  age  60.   His  date  of  birth  (DOB)  is
18 Nov 1961.

The  remaining  relevant  facts  pertaining  to  this  application,
extracted from the applicant’s military records, are  contained  in
the letter prepared by the appropriate office of the Air  Force  at
Exhibit C.

___________________________________________________________________
AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed this application and recommended denial.  They
gave the following analysis of the case:

In April 1997, the decedent was notified that he  was  eligible  to
participate in the Reserve Component Survivor Benefit Plan (RCSBP).
 The election package was sent by certified mail and signed for  by
the decedent on 14 Apr 97.  At the  end  of  his  90-day  suspense,
there was no evidence that he had made an election.  Under the  SBP
law in effect at the time,  he  was  considered  to  have  declined
making an election until age 60.  He  remained  eligible  to  elect
coverage under SBP upon reaching age 60.

During the 1 Mar 99 to 29 Feb  00  RCSBP  open  enrollment  season,
members who had made no election or who had elected less than  full
coverage for their spouses were able to change  their  election  to
add or increase coverage.  A package  was  sent  to  the  decedent;
however, there is no record he made an  election  during  the  open
season.

Title 10 U.S.C., Section 1448(a) states,  “a  person  described  in
clauses (i) and (ii) of subparagraph (B)  who  does  not  elect  to
participate in the  Plan  before  the  end  of  the  90-day  period
referred to in that clause remains eligible, upon reaching 60 years
of  age  and  otherwise  becoming  entitled  to  retired  pay,   to
participate in  the  Plan  in  accordance  with  eligibility  under
paragraph 1(A).”   The  Personnel  Data  System  (PDS),  and  ARPC,
considers this type of an election as  if  the  member  had  chosen
Option A, declining to making an election until age 60.  The member
remained eligible to make the election at age 60.

Under Title 10 U.S.C., Section 1448, the requirements for notifying
a spouse are, 1) member elected spouse coverage at  less  than  the
maximum level, or 2) member elected to have children only coverage.
 Since decedent did not respond within the  90  days  permitted  by
law, spousal consent was not required.

They further state that since  the  applicant  is  the  unremarried
widow of a retirement eligible member, there are benefits that  she
may be eligible for, such as, commissary, base exchange, and  other
base services.  On 18 Nov 2021 (decedent’s age 60),  the  applicant
will become eligible to receive medical care  through  the  TRICARE
program.

A complete copy of the evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 9 July 2002 for review and comment within 30 days (Exhibit D).

Applicant’s  Congressman  submitted  a  statement  in  her   behalf
stating,  in  part,  that  he  believes  ARPC’s  recommendation  is
misguided and the Air Force gains nothing, except a few dollars, in
denying the  applicant  her  husband’s  well-earned  pension.   His
complete response is at Exhibit E.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was not timely filed; however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the existence of error or injustice.  We took notice of
the applicant's complete submission in judging the  merits  of  the
case; however, we agree with the opinion and recommendation of  the
Air  Force  office  of  primary  responsibility  and  adopt   their
rationale as the basis for our conclusion that  the  applicant  has
not been the victim of an error or injustice.   Therefore,  in  the
absence of evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.

___________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified  that  the  evidence  presented  did  not
demonstrate the existence of material error or injustice; that  the
application was denied without a personal appearance; and that  the
application will only be reconsidered upon the submission of  newly
discovered relevant evidence not considered with this application.

___________________________________________________________________

The following members of  the  Board  considered  this  application
AFBCMR   Docket   Number   02-01652   in   Executive   Session   on
16 August 2002, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Chair
      Mr. Joseph A. Roj, Member
      Mr. Roscoe Hinton Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Apr 02, w/atchs.
    Exhibit B.  Deceased Member’s Master Personnel Records.
    Exhibit C.  Letter, HQ ARPC/DPS, dated 1 Aug 02, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 9 Jul 02, w/atchs.
    Exhibit E.  Letter, Applicant’s Congressman statement, dated
                31 Jul 02.




                                   ROSCOE HINTON JR.
                                   Acting Panel Chair